The Asia Pacific Refugee Rights Network (APRRN) strongly condemns the refoulement of two Sri Lankan refugees and an asylum seeker by Malaysian authorities on 26 May 2014.

Photograph: thesundaily.my

The two refugees were recognised by UNHCR and had valid UNHCR refugee cards; the other was in the process of having his refugee claim assessed by UNHCR.

Malaysian authorities initially arrested the three men, all ethnic Tamils, on 15 May 2014 and detained them on remand for 14 days for offences under the Immigration Act.

However, in a news release issued on 25 May, the Inspector General of Police, Khalid Abu Bakar, announced that the three were “terrorists”, and they were deported to Sri Lanka that night without prior notification to family members, lawyers and UNHCR and without any evidence being presented to substantiate the terrorism allegations.

News reports from Sri Lanka indicate that the three were arrested at the behest of the Sri Lankan police, who identified them as Liberation Tigers of Tamil Eelam (LTTE) leaders, and that a special team from the Sri Lankan police escorted the three back to Sri Lanka.

Before deportation, the three persons were not produced before a court of law at any point. They were not given an opportunity to defend themselves against the charges levied against them and were denied the right to a fair trial.

Even if found guilty of a crime, the three men should have been allowed to serve their sentences in Malaysia, rather than being refouled to Sri Lanka where returnees suspected to have LTTE links are at grave risk of persecution by state authorities.

In the past Malaysia’s treatment of Sri Lankan refugees has raised questions of due process and its commitment to the principle of non-refoulement.:

On 14 December 2013, police arrested a Sri Lankan refugee for holding a birthday party in memory of the LTTE chief Prabhakaran, and he was charged under Section 4(1)(a) of the Sedition Act.

In 2009, Malaysia forcibly deported 108 refugees, including a woman who was eight months pregnant, back to Sri Lanka after allowing the Sri Lankan Embassy staff to coerce the refugees into signing repatriation documents.

Indeed, Malaysia’s actions suggest that the government is more intent on pursuing its diplomatic and economic relations with the Sri Lanakan government than respecting its obligations under international law. Since 2013, Lena Hendry, programme coordinator of the human rights NGO Pusat Komas, has faced judicial harassment in relation to the organisation of a private screening of the documentary film called “No Fire Zone, the Killing Fields of Sri Lanka” on allegations of war crimes committed in Sri Lanka during the civil war in 2009.

Although Malaysia is not a signatory to the 1951 Convention on the Status of Refugees, the principle of non-refoulement is the cornerstone of asylum and of international refugee law and forms an integral part of international customary law.

As set forth in Article 14 of the Universal Declaration of Human Rights, this principle reflects the commitment of the international community to ensure to all persons the enjoyment of human rights, including the rights to life, to freedom from torture or cruel, inhuman or degrading treatment or punishment, and to liberty and security of person. These and other rights are threatened when a refugee is returned to persecution or danger.

In addition, the government of Malaysia’s action contravenes Articles 5(1) and 8 of Malaysia’s Federal Constitution which prohibits the deprivation of personal life and liberty save in accordance with the law and which also promotes the right to the equal protection of the law.

Pursuant to Malaysia’s cooperation with the UNHCR and the approbation of the rights of asylum seekers to seek international protection, the three men cannot be viewed as enemy aliens excluded from the protection of the Federal Constitution.

Human rights groups have documented torture, rape against returnees who are suspected to have LTTE links or had sought asylum in fear of persecution in Sri Lanka. The report by Human Rights Watch “We Will Teach You a Lesson” detailed 75 cases of alleged rape and sexual abuse from 2006 to 2012 in both official and secret detention centres throughout Sri Lanka. Both men and women detainees reported being raped on multiple occasions, often by several people, with the army, police, and pro-government paramilitary groups frequently participating.

Malaysia is clearly in breach of its non-refoulement obligations under international customary law by deporting the two Sri Lankan refugees and one asylum seeker back to face possible torture and or other forms of cruel, inhuman or degrading treatment or punishment or possibly even death at the hands of the Sri Lankan authorities

It is appalling that the persons were not given an opportunity to defend themselves in a court of law in Malaysia. Such actions seriously tarnish Malaysia’s standing in the international community and supports the accusations that Malaysia does not respect its human rights obligations.

APRRN strongly urges the Malaysian government to ensure that such incidents do not happen again. In particular, Malaysia should:

Ensure that no further breaches of the princple of non-refoulment occur and that remaining Sri Lankan refugees and asylum seekers in Malaysia should have access to timely and fair asylum procedures and to durable solutions without fear of refoulement, expulsion and punishment. Their rights to due process and freedom from arbitrary arrest and detention should be upheld and respected

In accordance with international human rights principles, including the Universal Declaration of Human Rights and Article 20 of the Asean Human Rights Declaration, if suspected of criminal activities, Malaysia should ensure that refugees and asylum seekers are presumed innocent until proven guilty according to law in a fair and public trial, by a competent, independent and impartial tribunal. They should also have the right to legal representation

Sign and ratify the 1951 Convention on the Status of Refugees and its 1967 Protocol, and the Convention against Torture. Pending ratification of these instruments, should ensure that domestic legislation is enacted to protect the rights of those seeking international protection within its borders.

Enact laws that prevent and severely penalise persons committing, aiding or supporting torture and actions that may put people at risk of torture.

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The arbitrary and forcible return, without any judicial oversight, of these refugees and asylum seekers by the Malaysian government to Sri Lanka reflects not only the contempt the BN has for the rule of law, but also its callous attitude towards human life. They have shamed all right-thinking Malaysians rendering us unworthy of being members of the human community.